Cancer employees and the right to fair labour practices in terms of the Labour Relations Act 66 of 1995

• Record Number: dejure_v52_n2_a1
• Pages: 1-26
• Date: 20 August 2019
• DOI: 10.10520/EJC-17a5eff948
• Author: Charles Maimela
• Published date: 20 August 2019

Cancer employees and the right to fair labour practices 1

Cancer employees and the right to fair

labour practices in terms of the Labour

Relations Act 66 of 1995

Charles Maimela

LLB LLM LLD

Senior Lecturer, Department of Private Law, University of Pretoria

SUMMARY

Cancer is a medical condition that affects all of mankind and does not take

into account the race, religion and socio-economic position of a person.

The effect of cancer on people living with this medical condition goes

beyond physical and psychological distress. This is because persons living

with cancer experience discrimination in the workplace due to cancer and

this affects the employment status or position of cancer employees.

Cancer employees if they are not dismissed from work their working

conditions is in most instances unbearable due to the unfair labour

practices they experience at the hands of employers and fellow employees.

Awareness about cancer in the workplace is encouraged and championed

in this contribution as one of the measures to eradicate unfair labour

practices that are experienced by cancer employees in the workplace.

1Introduction

Employment is one of the most important socio-economic factors, which

affect cancer patients.1 As a result of their condition, cancer employees

are often victims of unfair discrimination in the workplace.2 In some

instances, this may lead to affected employees losing their jobs, and

consequently becoming economically dependent on family and friends.3

It is necessary to give special attention to the meaning of cancer and

how it develops in the human body. Various unfair labour practices

which cancer employees experience daily in the workplace will also be

discussed herein.4 The relevant unfair labour practices, which will form

part of this discussion, include: demotion, denial of promotion and unfair

performance appraisals. These different forms of unfair labour practices

will be explored with an aim of asserting that cancer does not necessarily

deter an employee from working, despite its aggressive nature, and that

in actual fact one can lead a normal and productive life in spite of having

to live with cancer. For purposes of dealing with the research problem,

one has to understand that cancer employees experience unfair

1 Doyal and Hoffman “The growing burden of chronic diseases among South

African women” 2009 CME 458.

2 Doyal and Hoffman 2009 CME 458.

3 Doyal and Hoffman 2009 CME 458.

4 Doyal and Hoffman 2009 CME 459.

How to cite: Maimela ‘Cancer employees and the right to fair labour practices in terms of the Labour Relations

Act 66 of 1995 ’ 2019 De Jure Law Journal 1-26

http://dx.doi.org/10.17159/2225-7160/2019/v52a1

2 2019 De Jure Law Journal

discrimination mainly because of the stigma attached to the disease and

the ignorance exhibited by some employers and employees in relation to

cancer.5 In addition, a comparative analysis between South Africa and

England will also be explored due to the historical links both countries

share.6 Reference will also be made, to the United States of America, as

the United States, in general, has taken great strides in recognising the

vulnerability of cancer employees and the need to protect the latter

within the American legal system.

2 The meaning of cancer

As a point of departure, it is essential to look at the definition of the term

“cancer”. In the 12th century, Hippocrates also known as the “Father of

Medicine” discovered cancer.7 Cancer is defined as a process where cells

in the body grow in an uncontrollable way.8 The word cancer is derived

from the Latin word “crab”, which describes the way in which cancer

spreads or appears in the human body, and which has a crab-like

appearance.9 These include cancers from covering tissues, skin cancer,

mucous membrane cancer and cancer from the glands.10 Further, the

Regulations Relating to Cancer Registration,11 define cancer as all

malignant neoplasms and conditions suspected to be such, as contained

in the International Classifications of Diseases for Oncology.12 Another

word used to describe cancer is “sarcoma” which is the type of cancer

that targets supporting body structures such as the bones, tendons,

muscles and fibrous tissues.13

From these definitions it becomes clear that cancer can spread

through the human body to an extent where it is uncontrollable and

unmanageable. One can be sure that cancer is indeed a very dangerous

disease, which affects all of mankind without prejudice.14 However,

because of its complex nature, new knowledge is discovered daily and

5 Amir, Neary and Luker “Cancer Survivors views of work three years post

diagnosis: A United Kingdom perspectives” 2008 EJOJ 192.

6Joubert et al, The Law of South Africa (2004) 8-9.

7 Barrow “Portraits of Hippocrates” 2001 Medical History 85-88.

8Friedberg Cancer Answers (1993) 2.

9David Cancer Care (1995) 2.

10 Sco tt 2.

11 Regulations Relating to Cancer Registration GN R380 in GG 34248 issued in

terms of the National Health Act 61 of 2003 dated 26 April 2011.

12 S 1 of the Regulations Relating to Cancer Registration GN R380 in GG

34248 issued in terms of the National Health Act 61 of 2003 dated 26 April

2011.

13 Heney, Young and Dixon-Woods Rethinking Experiences of Childhood Cancer

(2005) 21.

14 Carnevali and Reiner The Cancer Experience (1990) 1. Further, it is a

reasonable argument and an unfortunate fact that nearly anyone across the

globe has had his or her life touched by cancer to a lesser or greater extent,

such as they themselves being affected by cancer directly; or indirectly,

having a family member or loved one affected by cancer. Cancer is a

disease that preys on all of us; both young and old people are affected.